Geoffrey R. Stone's Blog, page 5
February 28, 2015
A Deadly Assault on Academic Freedom
Recent events in the state of North Carolina pose a serious threat to academic freedom in our nation. America's universities are, by any measure, the best in the world. What has made that possible is our deep commitment to academic freedom. The recent decision of the Board of Governors of the University of North Carolina to close the University of North Carolina Law School's Center on Poverty, Work and Opportunity is a blatant and dangerous instance of political interference with academic freedom.
Although the Center on Poverty, Work and Opportunity has accomplished a great deal in recent years, its mission and its director, Gene Nichol, a distinguished scholar and academic administrator who has served as dean of the University of Colorado Law School and as president of College of William and Mary, have clearly alienated the Koch brother-backed legislators who now control both the state legislature and the University's Board of Governors.
In the guise of trimming the university's budget, the Board has decided to shutter three of the 240 boards, centers, and institutes that operate within the state university system. By coincidence, they decided to close the Center on Poverty, Work and Opportunity with the patently false explanation that the Center was unproductive. Anyone who has examined the work of the Center knows that this claim is bogus. The plain and simple fact is that both the Center and its director advocate positions that the Tea Party powers-that-be in North Carolina do not like.
This blatant intrusion of politics and political ideology into the operations of a university is hardly unprecedented in American history, but it is an evil that we as a nation have fought tirelessly to extinguish. It is a travesty to see it reemerge again today.
Although the struggle for academic freedom can be traced at least as far back as Socrates' eloquent defense of himself against the charge that he corrupted the youth of Athens, the modern history of this struggle, as it has played out in the university context, begins in the nineteenth century.
The most important moral problem in America in the first half of the 19th century was, of course, slavery. By the 1830s, the mind of the South had closed on this issue. When it became known, for example, that a professor at the University of North Carolina was sympathetic to the 1856 Republican presidential candidate, he was discharged by the board of trustees.
The situation in the North was not much better. The president of Franklin College was dismissed because he was not an abolitionist, and Judge Edward Loring was dismissed from a lectureship at the Harvard Law School because, in his capacity as a federal judge, he had enforced the fugitive slave law.
Between 1870 and 1900, there was a genuine revolution in American higher education. Critical to this revolution was the impact of Darwinism. In the 1870s, determined efforts were made exclude proponents of Darwinism whenever possible. The disputes were often quite bitter. The great debate over Darwinism represented a profound clash between conflicting cultures, intellectual styles, and academic values.
A new approach to education and to intellectual discourse grew out of the Darwinian debate. To the evolutionists, all beliefs were tentative and verifiable only through a continuous process of inquiry. The evolutionists held that every claim to truth must submit to open verification; that the process of verification must follow certain rules; and that this process is best understood by those who qualify as experts.
By the end of the nineteenth century, it was increasingly accepted that a commitment to academic freedom defined the true university. As William Rainey Harper, the first president of the University of Chicago, observed in 1892: "When for any reason the administration of a university attempts to dislodge a professor because of his political . . . sentiments, at that moment the institution has ceased to be a university."
This commitment to academic freedom was tested severely in the closing years of the 19th century, when businessmen who had accumulated vast industrial wealth began to support universities on an unprecedented scale. For at the same time that trusteeship in a prestigious university was increasingly becoming an important symbol of business prominence, a growing concern among scholars about the excesses of commerce and industry generated new forms of research, particularly in the social sciences, that were often sharply critical of the means by which these trustee-philanthropists had amassed their wealth.
The moguls and the scholars thus came into direct conflict. A professor was dismissed from Cornell, for example, for a pro-labor speech that annoyed a powerful benefactor, and a prominent scholar at Stanford was dismissed because he annoyed donors with his views on the silver and immigration issues.
This tension continued until the beginning of World War I, when it was dwarfed by an even larger conflict.
During the Great War, patriotic zealots persecuted and even prosecuted those who questioned the war or the draft. Universities faced the almost total collapse of the institutional safeguards that had evolved up to that point to protect academic freedom, for nothing in their prior experience had prepared them to deal with the issue of loyalty at a time of national emergency.
At the University of Nebraska, for example, three professors were discharged because they had "assumed an attitude calculated to encourage . . . a spirit of [indifference] towards [the] war." At the University of Virginia, a professor was discharged because he had made a speech predicting that the war would not make the world safe for democracy. And at Columbia, the Board of Trustees launched a general campaign of investigation to determine whether doctrines that tended to encourage a spirit of disloyalty were being taught at the university.
Similar issues arose again, with a vengeance, during the age of McCarthy. In the late 1940s and 1950s, many if not most universities excluded those accused of Communist sympathies from participation in university life. The University of Washington fired three tenured professors, the University of California dismissed thirty-one professors who refused to sign an anti-Communist oath, and Yale president Charles Seymour boasted that "there will be no witch hunts at Yale, because there will be no witches. We will not hire Communists."
What we are seeing now in North Carolina is an ugly resurgence of an attempt by political elements outside the university to censor, discipline, and punish those inside the university who take positions that annoy, offend, or disturb them. This is unconscionable. The Board of Governors of the University of North Carolina must reverse its decision now and it must acknowledge that its action, however tempting, betrayed the Board's most fundamental responsibility to protect the core values of what used to be one of our nation's greatest public universities.
Although the Center on Poverty, Work and Opportunity has accomplished a great deal in recent years, its mission and its director, Gene Nichol, a distinguished scholar and academic administrator who has served as dean of the University of Colorado Law School and as president of College of William and Mary, have clearly alienated the Koch brother-backed legislators who now control both the state legislature and the University's Board of Governors.
In the guise of trimming the university's budget, the Board has decided to shutter three of the 240 boards, centers, and institutes that operate within the state university system. By coincidence, they decided to close the Center on Poverty, Work and Opportunity with the patently false explanation that the Center was unproductive. Anyone who has examined the work of the Center knows that this claim is bogus. The plain and simple fact is that both the Center and its director advocate positions that the Tea Party powers-that-be in North Carolina do not like.
This blatant intrusion of politics and political ideology into the operations of a university is hardly unprecedented in American history, but it is an evil that we as a nation have fought tirelessly to extinguish. It is a travesty to see it reemerge again today.
Although the struggle for academic freedom can be traced at least as far back as Socrates' eloquent defense of himself against the charge that he corrupted the youth of Athens, the modern history of this struggle, as it has played out in the university context, begins in the nineteenth century.
The most important moral problem in America in the first half of the 19th century was, of course, slavery. By the 1830s, the mind of the South had closed on this issue. When it became known, for example, that a professor at the University of North Carolina was sympathetic to the 1856 Republican presidential candidate, he was discharged by the board of trustees.
The situation in the North was not much better. The president of Franklin College was dismissed because he was not an abolitionist, and Judge Edward Loring was dismissed from a lectureship at the Harvard Law School because, in his capacity as a federal judge, he had enforced the fugitive slave law.
Between 1870 and 1900, there was a genuine revolution in American higher education. Critical to this revolution was the impact of Darwinism. In the 1870s, determined efforts were made exclude proponents of Darwinism whenever possible. The disputes were often quite bitter. The great debate over Darwinism represented a profound clash between conflicting cultures, intellectual styles, and academic values.
A new approach to education and to intellectual discourse grew out of the Darwinian debate. To the evolutionists, all beliefs were tentative and verifiable only through a continuous process of inquiry. The evolutionists held that every claim to truth must submit to open verification; that the process of verification must follow certain rules; and that this process is best understood by those who qualify as experts.
By the end of the nineteenth century, it was increasingly accepted that a commitment to academic freedom defined the true university. As William Rainey Harper, the first president of the University of Chicago, observed in 1892: "When for any reason the administration of a university attempts to dislodge a professor because of his political . . . sentiments, at that moment the institution has ceased to be a university."
This commitment to academic freedom was tested severely in the closing years of the 19th century, when businessmen who had accumulated vast industrial wealth began to support universities on an unprecedented scale. For at the same time that trusteeship in a prestigious university was increasingly becoming an important symbol of business prominence, a growing concern among scholars about the excesses of commerce and industry generated new forms of research, particularly in the social sciences, that were often sharply critical of the means by which these trustee-philanthropists had amassed their wealth.
The moguls and the scholars thus came into direct conflict. A professor was dismissed from Cornell, for example, for a pro-labor speech that annoyed a powerful benefactor, and a prominent scholar at Stanford was dismissed because he annoyed donors with his views on the silver and immigration issues.
This tension continued until the beginning of World War I, when it was dwarfed by an even larger conflict.
During the Great War, patriotic zealots persecuted and even prosecuted those who questioned the war or the draft. Universities faced the almost total collapse of the institutional safeguards that had evolved up to that point to protect academic freedom, for nothing in their prior experience had prepared them to deal with the issue of loyalty at a time of national emergency.
At the University of Nebraska, for example, three professors were discharged because they had "assumed an attitude calculated to encourage . . . a spirit of [indifference] towards [the] war." At the University of Virginia, a professor was discharged because he had made a speech predicting that the war would not make the world safe for democracy. And at Columbia, the Board of Trustees launched a general campaign of investigation to determine whether doctrines that tended to encourage a spirit of disloyalty were being taught at the university.
Similar issues arose again, with a vengeance, during the age of McCarthy. In the late 1940s and 1950s, many if not most universities excluded those accused of Communist sympathies from participation in university life. The University of Washington fired three tenured professors, the University of California dismissed thirty-one professors who refused to sign an anti-Communist oath, and Yale president Charles Seymour boasted that "there will be no witch hunts at Yale, because there will be no witches. We will not hire Communists."
What we are seeing now in North Carolina is an ugly resurgence of an attempt by political elements outside the university to censor, discipline, and punish those inside the university who take positions that annoy, offend, or disturb them. This is unconscionable. The Board of Governors of the University of North Carolina must reverse its decision now and it must acknowledge that its action, however tempting, betrayed the Board's most fundamental responsibility to protect the core values of what used to be one of our nation's greatest public universities.
February 17, 2015
Charlie Hebdo and the First Amendment
After the murderous attacks in Paris and Copenhagen, one might wonder whether a newspaper that published the Charlie Hebdo cartoons of the Prophet Mohammad in the United States would be protected by the First Amendment. The government might make two primary arguments in support of a law prohibiting the publication of the cartoons.
First, the government might argue that the cartoons are not protected by the First Amendment because they are blasphemous. Blasphemy is defined as the act of insulting or showing contempt or lack of reverence for God or to holy persons. There is no doubt that the Charlie Hebdo cartoons of the Prophet Mohammad constitute blasphemy. (If you haven't seen them, you can find them on Google.)
During the Middle Ages, the penalty for blasphemy included death, cutting off the lips, and burning or tearing out the tongue. Thomas Aquinas argued that blasphemy was a worse sin than murder, for blasphemy "is a sin committed directly against God," whereas murder is merely "a sin against one's neighbor." In the American colonies, the Puritans punished blasphemy severely. Although the Puritans never executed anyone for the offense, they whipped, pilloried, or mutilated those found guilty of the offense.
By the time of the American Revolution, though, the idea that the government could legitimately punish an individual for disparaging religion had fallen into disrepute. The very concept was seen as incompatible with the core aspirations of a society committed to religious toleration, the disestablishment of religion, and the principle of free expression. By 1776 the law of blasphemy had come to be regarded as a "relic of a dead age."
Nonetheless, in the evangelical fervor of the Second Great Awakening in the early decades of the early 19th century, some courts in the United States aggressively punished blasphemy. In 1824, for example, Abner Updegraff was prosecuted in Pennsylvania for deriding the Bible in a public speech as "a mere fable." John Adams and Thomas Jefferson both vigorously condemned such prosecutions, calling them "a great embarrassment" to the fundamental values of the nation, but this new wave of blasphemy prosecutions continued.
When the issue finally came before the Supreme Court of the United States in 1952, the Court made clear that government in the United States cannot constitutionally restrict expression because it is blasphemous. As the court unanimously held in Burstyn v. Wilson, government "has no legitimate interest in protecting any or all religions from views distasteful to them," and it "is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine." Thus, although the Charlie Hebdo cartoons are surely blasphemous, that is not a constitutionally permissible basis for suppressing them.
Second, the government might argue that the publication of the Charlie Hebdo cartoons can constitutionally be prohibited because the very fact of publication creates a risk of violent response. In what circumstances can otherwise constitutionally protected expression be prohibited for this reason? Although the Supreme Court has long held that speech cannot constitutionally be restricted merely because it offends people, "invites dispute," or even "stirs people to anger," a risk of violence must be taken more seriously.
In Feiner v. New York, which was decided in 1951, the Supreme Court accepted just such an argument. Irving Feiner made an inflammatory speech on a street corner to a group of listeners. Some members of the crowd grew angry at Feiner's remarks and seemed on the verge of violence. Two police officers who were present at the scene ordered Feiner to stop speaking. When he refused, asserting his First Amendment right to continue, the officers arrested him for disturbing the peace. The Supreme Court, in a sharply divided decision, held that, in such circumstances, Feiner could constitutionally be punished.
More recently, however, the Supreme Court has moved sharply away from Feiner. What became clear to the court, particularly during the civil rights era, was that Feiner invited what came to be known as the "heckler's veto." That is, if those who object to a speaker's views know that they can effectively conscript the authority of the state to silence the speaker if they threaten violence, then the First Amendment can readily be subverted by those who seek to suppress opinions with which they disagree. This was the case, for example, when white Southerners threatened violence in response to civil rights marches, and when the residents of Skokie, Illinois, threatened violence in response to a proposed march by members of the American Nazi Party.
What the court has come to understand is that, faced with threats of violence, the government must take every possible measure to prevent the violence before it may silence the speaker. Otherwise, those who resort to violence will have the power to dictate the terms of our public debate and thereby undermine our most fundamental freedoms.
But that still leaves the question: Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?
First, the government might argue that the cartoons are not protected by the First Amendment because they are blasphemous. Blasphemy is defined as the act of insulting or showing contempt or lack of reverence for God or to holy persons. There is no doubt that the Charlie Hebdo cartoons of the Prophet Mohammad constitute blasphemy. (If you haven't seen them, you can find them on Google.)
During the Middle Ages, the penalty for blasphemy included death, cutting off the lips, and burning or tearing out the tongue. Thomas Aquinas argued that blasphemy was a worse sin than murder, for blasphemy "is a sin committed directly against God," whereas murder is merely "a sin against one's neighbor." In the American colonies, the Puritans punished blasphemy severely. Although the Puritans never executed anyone for the offense, they whipped, pilloried, or mutilated those found guilty of the offense.
By the time of the American Revolution, though, the idea that the government could legitimately punish an individual for disparaging religion had fallen into disrepute. The very concept was seen as incompatible with the core aspirations of a society committed to religious toleration, the disestablishment of religion, and the principle of free expression. By 1776 the law of blasphemy had come to be regarded as a "relic of a dead age."
Nonetheless, in the evangelical fervor of the Second Great Awakening in the early decades of the early 19th century, some courts in the United States aggressively punished blasphemy. In 1824, for example, Abner Updegraff was prosecuted in Pennsylvania for deriding the Bible in a public speech as "a mere fable." John Adams and Thomas Jefferson both vigorously condemned such prosecutions, calling them "a great embarrassment" to the fundamental values of the nation, but this new wave of blasphemy prosecutions continued.
When the issue finally came before the Supreme Court of the United States in 1952, the Court made clear that government in the United States cannot constitutionally restrict expression because it is blasphemous. As the court unanimously held in Burstyn v. Wilson, government "has no legitimate interest in protecting any or all religions from views distasteful to them," and it "is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine." Thus, although the Charlie Hebdo cartoons are surely blasphemous, that is not a constitutionally permissible basis for suppressing them.
Second, the government might argue that the publication of the Charlie Hebdo cartoons can constitutionally be prohibited because the very fact of publication creates a risk of violent response. In what circumstances can otherwise constitutionally protected expression be prohibited for this reason? Although the Supreme Court has long held that speech cannot constitutionally be restricted merely because it offends people, "invites dispute," or even "stirs people to anger," a risk of violence must be taken more seriously.
In Feiner v. New York, which was decided in 1951, the Supreme Court accepted just such an argument. Irving Feiner made an inflammatory speech on a street corner to a group of listeners. Some members of the crowd grew angry at Feiner's remarks and seemed on the verge of violence. Two police officers who were present at the scene ordered Feiner to stop speaking. When he refused, asserting his First Amendment right to continue, the officers arrested him for disturbing the peace. The Supreme Court, in a sharply divided decision, held that, in such circumstances, Feiner could constitutionally be punished.
More recently, however, the Supreme Court has moved sharply away from Feiner. What became clear to the court, particularly during the civil rights era, was that Feiner invited what came to be known as the "heckler's veto." That is, if those who object to a speaker's views know that they can effectively conscript the authority of the state to silence the speaker if they threaten violence, then the First Amendment can readily be subverted by those who seek to suppress opinions with which they disagree. This was the case, for example, when white Southerners threatened violence in response to civil rights marches, and when the residents of Skokie, Illinois, threatened violence in response to a proposed march by members of the American Nazi Party.
What the court has come to understand is that, faced with threats of violence, the government must take every possible measure to prevent the violence before it may silence the speaker. Otherwise, those who resort to violence will have the power to dictate the terms of our public debate and thereby undermine our most fundamental freedoms.
But that still leaves the question: Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?
January 31, 2015
Campus Sexual Assault
The issue of campus sexual assault has received a great deal of attention in the media in recent months. This is warranted. There is a real problem on college and university campuses, and it is a problem that must be taken seriously. Rape and other forms of sexual violence and sexual assault are intolerable whenever and wherever they occur.
Some people say that, because such actions are crimes, colleges and universities should not attempt to adjudicate the issues, but should simply turn these cases over to the criminal justice system. I do not agree. Colleges and universities have an independent responsibility to keep their students safe and to ensure that they can live and learn in an environment free from sexual violence.
But the concern with campus sexual assault has begun to take on the characteristics of a panic in which government officials and school administrators have increasingly lost sight of other fundamental values that must shape the culture of institutions of higher learning.
In this post, I will address two issues that have caused me particular concern and about which I want to sound a bit of an alarm. The first concerns issues of substance, the second concerns issues of process.
The federal Department of Education has put serious pressure on colleges and universities to take aggressive action to deal more effectively with the issue of campus sexual assault. In principle, this is a sound and important step in the right direction. But the Department of Education has declined to define precisely what it means by sexual assault. Clearly, it includes the crime of rape. But the meaning of sexual assault, at least as used in this context, can be extremely, and dangerously, vague.
Fundamentally, it is bound up with such concepts as "consent" and "unwanted" sex. The problem is in defining how those concepts apply in this context. In many instances, especially where alcohol is involved, as it often is, extremely difficult questions arise about the meaning of "consent" and "unwanted." Is it measured by the subjective state of mind of the "complainant" or by the reasonable understanding of the "accused"? How are the participants, and the institutions, to know whether in any given interaction the accused crossed the line?
At the moment, academic institutions are at sea on this question. Some institutions now declare that in any sexual encounter there is a presumption of lack of consent, and thus coercion, unless the complainant affirmatively expressed consent at every step in the interaction. Others hold that sexual assault exists only if the accused disregarded a clearly-expressed lack of consent. These definitions, and the many other variations that different institutions now employ, are inconsistent with one another, difficult to apply in practice, and confused still further when both individuals were under the influence of alcohol at the time of the incident.
The Department of Education has not clarified what it thinks the appropriate standard should be. It has sent strong signals, however, that colleges and universities must be tough on those who commit "sexual assault," however defined. The result is that academic institutions feel compelled to adopt very broad definitions of sexual assault for fear that if they get it "wrong" the Department will find them in violation of federal law and strip them of federal funds - a penalty that strikes at the very heart of many colleges and universities.
To eliminate such overreaction on the part of academic institutions, the Department should set a clear - and sensible - standard for what counts as sexual assault. This standard should focus on the reasonable understanding of the accused rather than on the subjective understanding of the complainant. To impose serious discipline on students for committing sexual assault when they could not reasonably have understood in the circumstances that the sexual interaction was unwanted sets a standard of culpability that is both unfair to the accused and demeaning to the complainant.
The latter point is worth some elaboration. In these situations, the complainant is almost always (though not always) a woman. In the absence of either a reasonable fear of danger or serious incapacitation from drugs or alcohol, the woman in this situation who does not want the sexual encounter should reasonably be expected to make her feelings known at the time. Women students need to be protected from coercion, but they should not be treated as if they are inherently incapable of expressing their feelings, their wants, and their desires.
Women students fought long and hard to be treated by colleges and universities as individuals capable of making responsible decisions for themselves. The days of parietal hours are happily behind us. For the federal government - or for colleges and universities - to suggest that women students are incapable of making appropriate decisions or of expressing their minds clearly denies them equal dignity and reinforces all the wrong messages about the integrity, independence, and maturity of women. Colleges and universities should not treat their women students as if they are frail, helpless, and weak.
The second issue concerns process. Assume that a female student accuses a male student of sexual assault. She alleges that they had some drinks at a party, they went to his room, they made out naked for a while, he took a condom out of his wallet, she said "no," and he nonetheless entered her. He says that she never said "no" or that, if she did, he didn't hear it, and that she acted as if she desired sex. He says that he thought it was consensual.
If the male student is found to have engaged in sexual assault, he may be suspended or expelled. If female student in fact said "no" and he clearly disregarded her lack of consent, expulsion would surely be appropriate. The critical question, though, is what actually happened at that moment, and in sorting that out the burden of proof is central. By what standard should the fact finder have to decide whether her story or his story is true, before expelling him?
According the Department of Education, in all such proceedings "the evidentiary standard that must be used" is "preponderance of the evidence," that is, whether it is "more likely than not" that he committed a sexual assault. In my judgment, that is the wrong standard. Indeed, many if not most colleges and universities have traditionally applied the "clear and convincing evidence" standard in such circumstances. The difference between these two standards is roughly the difference between being 51% confident that the student committed the sexual assault before expelling him and being 75% confident that the student committed the sexual assault before expelling him.
To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy.
For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.
Moreover, the procedures used in these disciplinary hearings do not come close to those employed in civil actions, which involve judges, juries, rules of evidence, lawyers, discovery, and a host of other procedural protections designed to enhance the reliability of the proceedings. Even at their best, college and university disciplinary proceedings are a far cry from civil actions in terms of fairness to the accused.
Thus, although the Department of Education may well be right that "proof beyond a reasonable doubt" is unnecessary in these circumstances because there is no risk of imprisonment or a formal criminal record, it is completely unfair, in my judgment, for a college or university to suspend or expel a student on the ground that he committed a sexual assault if the institution is only 51% confident that he did so.
The Department of Education should either mandate the "clear and convincing evidence" standard in these situations, or it should at least leave the institutions free to choose which of those standards best fits their own sense of due process and justice.
One might, of course, object that it is just as bad to "acquit" a guilty student as to "convict" an innocent one. Indeed, we cannot underestimate the emotional and psychological harm to the complainant if her charges are not acted upon. But this is true even in criminal prosecutions. Our core sense of fairness and justice always errs on the side of not erroneously punishing an innocent person. We do not sacrifice that principle even when the accusation is terrorism, murder, rape, or child molestation. We should not sacrifice that principle here.
Of course, colleges and universities can and must take many other steps both to reduce the incidence of sexual assault on campus and to protect and care for those individuals who have been victimized by such behavior. But suspending or expelling innocent students is not an acceptable "solution."
Some people say that, because such actions are crimes, colleges and universities should not attempt to adjudicate the issues, but should simply turn these cases over to the criminal justice system. I do not agree. Colleges and universities have an independent responsibility to keep their students safe and to ensure that they can live and learn in an environment free from sexual violence.
But the concern with campus sexual assault has begun to take on the characteristics of a panic in which government officials and school administrators have increasingly lost sight of other fundamental values that must shape the culture of institutions of higher learning.
In this post, I will address two issues that have caused me particular concern and about which I want to sound a bit of an alarm. The first concerns issues of substance, the second concerns issues of process.
The federal Department of Education has put serious pressure on colleges and universities to take aggressive action to deal more effectively with the issue of campus sexual assault. In principle, this is a sound and important step in the right direction. But the Department of Education has declined to define precisely what it means by sexual assault. Clearly, it includes the crime of rape. But the meaning of sexual assault, at least as used in this context, can be extremely, and dangerously, vague.
Fundamentally, it is bound up with such concepts as "consent" and "unwanted" sex. The problem is in defining how those concepts apply in this context. In many instances, especially where alcohol is involved, as it often is, extremely difficult questions arise about the meaning of "consent" and "unwanted." Is it measured by the subjective state of mind of the "complainant" or by the reasonable understanding of the "accused"? How are the participants, and the institutions, to know whether in any given interaction the accused crossed the line?
At the moment, academic institutions are at sea on this question. Some institutions now declare that in any sexual encounter there is a presumption of lack of consent, and thus coercion, unless the complainant affirmatively expressed consent at every step in the interaction. Others hold that sexual assault exists only if the accused disregarded a clearly-expressed lack of consent. These definitions, and the many other variations that different institutions now employ, are inconsistent with one another, difficult to apply in practice, and confused still further when both individuals were under the influence of alcohol at the time of the incident.
The Department of Education has not clarified what it thinks the appropriate standard should be. It has sent strong signals, however, that colleges and universities must be tough on those who commit "sexual assault," however defined. The result is that academic institutions feel compelled to adopt very broad definitions of sexual assault for fear that if they get it "wrong" the Department will find them in violation of federal law and strip them of federal funds - a penalty that strikes at the very heart of many colleges and universities.
To eliminate such overreaction on the part of academic institutions, the Department should set a clear - and sensible - standard for what counts as sexual assault. This standard should focus on the reasonable understanding of the accused rather than on the subjective understanding of the complainant. To impose serious discipline on students for committing sexual assault when they could not reasonably have understood in the circumstances that the sexual interaction was unwanted sets a standard of culpability that is both unfair to the accused and demeaning to the complainant.
The latter point is worth some elaboration. In these situations, the complainant is almost always (though not always) a woman. In the absence of either a reasonable fear of danger or serious incapacitation from drugs or alcohol, the woman in this situation who does not want the sexual encounter should reasonably be expected to make her feelings known at the time. Women students need to be protected from coercion, but they should not be treated as if they are inherently incapable of expressing their feelings, their wants, and their desires.
Women students fought long and hard to be treated by colleges and universities as individuals capable of making responsible decisions for themselves. The days of parietal hours are happily behind us. For the federal government - or for colleges and universities - to suggest that women students are incapable of making appropriate decisions or of expressing their minds clearly denies them equal dignity and reinforces all the wrong messages about the integrity, independence, and maturity of women. Colleges and universities should not treat their women students as if they are frail, helpless, and weak.
The second issue concerns process. Assume that a female student accuses a male student of sexual assault. She alleges that they had some drinks at a party, they went to his room, they made out naked for a while, he took a condom out of his wallet, she said "no," and he nonetheless entered her. He says that she never said "no" or that, if she did, he didn't hear it, and that she acted as if she desired sex. He says that he thought it was consensual.
If the male student is found to have engaged in sexual assault, he may be suspended or expelled. If female student in fact said "no" and he clearly disregarded her lack of consent, expulsion would surely be appropriate. The critical question, though, is what actually happened at that moment, and in sorting that out the burden of proof is central. By what standard should the fact finder have to decide whether her story or his story is true, before expelling him?
According the Department of Education, in all such proceedings "the evidentiary standard that must be used" is "preponderance of the evidence," that is, whether it is "more likely than not" that he committed a sexual assault. In my judgment, that is the wrong standard. Indeed, many if not most colleges and universities have traditionally applied the "clear and convincing evidence" standard in such circumstances. The difference between these two standards is roughly the difference between being 51% confident that the student committed the sexual assault before expelling him and being 75% confident that the student committed the sexual assault before expelling him.
To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy.
For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.
Moreover, the procedures used in these disciplinary hearings do not come close to those employed in civil actions, which involve judges, juries, rules of evidence, lawyers, discovery, and a host of other procedural protections designed to enhance the reliability of the proceedings. Even at their best, college and university disciplinary proceedings are a far cry from civil actions in terms of fairness to the accused.
Thus, although the Department of Education may well be right that "proof beyond a reasonable doubt" is unnecessary in these circumstances because there is no risk of imprisonment or a formal criminal record, it is completely unfair, in my judgment, for a college or university to suspend or expel a student on the ground that he committed a sexual assault if the institution is only 51% confident that he did so.
The Department of Education should either mandate the "clear and convincing evidence" standard in these situations, or it should at least leave the institutions free to choose which of those standards best fits their own sense of due process and justice.
One might, of course, object that it is just as bad to "acquit" a guilty student as to "convict" an innocent one. Indeed, we cannot underestimate the emotional and psychological harm to the complainant if her charges are not acted upon. But this is true even in criminal prosecutions. Our core sense of fairness and justice always errs on the side of not erroneously punishing an innocent person. We do not sacrifice that principle even when the accusation is terrorism, murder, rape, or child molestation. We should not sacrifice that principle here.
Of course, colleges and universities can and must take many other steps both to reduce the incidence of sexual assault on campus and to protect and care for those individuals who have been victimized by such behavior. But suspending or expelling innocent students is not an acceptable "solution."
January 7, 2015
Free Speech on Campus
In light of recent events that have tested the commitment of colleges and universities across the nation to free and open discourse on campus, University of Chicago President Robert J. Zimmer appointed a faculty committee, chaired by me, to prepare a statement articulating the University of Chicago's commitment "to free, robust, and uninhibited debate and deliberation among all members of the University's community."
After carefully reviewing the University's history, examining events at other institutions, and consulting a broad range of individuals both inside and outside the University of Chicago, the committee crafted the following statement, which "reflects the long-standing and distinctive values of the University of Chicago and affirms the importance of maintaining and, indeed, celebrating those values for the future." I thought it might be instructive to share this statement more generally.
From its very founding, the University of Chicago has dedicated itself to the preservation and celebration of the freedom of expression as an essential element of the University's culture. In 1902, in his address marking the University's decennial, President William Rainey Harper declared that "the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago" and that "this principle can neither now nor at any future time be called in question."
Thirty years later, a student organization invited William Z. Foster, the Communist Party's candidate for President, to lecture on campus. This triggered a storm of protest from critics both on and off campus. To those who condemned the University for allowing the event, President Robert M. Hutchins responded that "our students . . . should have freedom to discuss any problem that presents itself." He insisted that the "cure" for ideas we oppose "lies through open discussion rather than through inhibition." On a later occasion, Hutchins added that "free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry, [and] that without it they cease to be universities."
In 1968, at another time of great turmoil in universities, President Edward H. Levi, in his inaugural address, celebrated "those virtues which from the beginning and until now have characterized our institution." Central to the values of the University of Chicago, Levi explained, is a profound commitment to "freedom of inquiry." This freedom, he proclaimed, "is our inheritance."
More recently, President Hanna Holborn Gray observed that "education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom."
The words of Harper, Hutchins, Levi, and Gray capture both the spirit and the promise of the University of Chicago. Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University of Chicago fully respects and supports the freedom of all members of the University community "to discuss any problem that presents itself."
Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.
The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University's commitment to a completely free and open discussion of ideas.
In a word, the University's fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University's educational mission.
As a corollary to the University's commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.
As Robert M. Hutchins observed, without a vibrant commitment to free and open inquiry, a university ceases to be a university. The University of Chicago's long-standing commitment to this principle lies at the very core of our University's greatness. That is our inheritance, and it is our promise to the future.
_________________
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, Chair
Marianne Bertrand, Chris P. Dialynas Distinguished Service Professor of Economics, Booth School of Business
Angela Olinto, Homer J. Livingston Professor, Department of Astronomy and Astrophysics, Enrico Fermi Institute, and the College
Mark Siegler, Lindy Bergman Distinguished Service Professor of Medicine and Surgery
David A. Strauss, Gerald Ratner Distinguished Service Professor of Law
Kenneth W. Warren, Fairfax M. Cone Distinguished Service Professor, Department of English and the College
Amanda Woodward, William S. Gray Professor, Department of Psychology and the College
After carefully reviewing the University's history, examining events at other institutions, and consulting a broad range of individuals both inside and outside the University of Chicago, the committee crafted the following statement, which "reflects the long-standing and distinctive values of the University of Chicago and affirms the importance of maintaining and, indeed, celebrating those values for the future." I thought it might be instructive to share this statement more generally.
From its very founding, the University of Chicago has dedicated itself to the preservation and celebration of the freedom of expression as an essential element of the University's culture. In 1902, in his address marking the University's decennial, President William Rainey Harper declared that "the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago" and that "this principle can neither now nor at any future time be called in question."
Thirty years later, a student organization invited William Z. Foster, the Communist Party's candidate for President, to lecture on campus. This triggered a storm of protest from critics both on and off campus. To those who condemned the University for allowing the event, President Robert M. Hutchins responded that "our students . . . should have freedom to discuss any problem that presents itself." He insisted that the "cure" for ideas we oppose "lies through open discussion rather than through inhibition." On a later occasion, Hutchins added that "free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry, [and] that without it they cease to be universities."
In 1968, at another time of great turmoil in universities, President Edward H. Levi, in his inaugural address, celebrated "those virtues which from the beginning and until now have characterized our institution." Central to the values of the University of Chicago, Levi explained, is a profound commitment to "freedom of inquiry." This freedom, he proclaimed, "is our inheritance."
More recently, President Hanna Holborn Gray observed that "education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom."
The words of Harper, Hutchins, Levi, and Gray capture both the spirit and the promise of the University of Chicago. Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University of Chicago fully respects and supports the freedom of all members of the University community "to discuss any problem that presents itself."
Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.
The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University's commitment to a completely free and open discussion of ideas.
In a word, the University's fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University's educational mission.
As a corollary to the University's commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.
As Robert M. Hutchins observed, without a vibrant commitment to free and open inquiry, a university ceases to be a university. The University of Chicago's long-standing commitment to this principle lies at the very core of our University's greatness. That is our inheritance, and it is our promise to the future.
_________________
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, Chair
Marianne Bertrand, Chris P. Dialynas Distinguished Service Professor of Economics, Booth School of Business
Angela Olinto, Homer J. Livingston Professor, Department of Astronomy and Astrophysics, Enrico Fermi Institute, and the College
Mark Siegler, Lindy Bergman Distinguished Service Professor of Medicine and Surgery
David A. Strauss, Gerald Ratner Distinguished Service Professor of Law
Kenneth W. Warren, Fairfax M. Cone Distinguished Service Professor, Department of English and the College
Amanda Woodward, William S. Gray Professor, Department of Psychology and the College
December 18, 2014
A Sensible Anti-Abortion Policy
Each year in the United States, there are approximately 6.7 million pregnancies. Of these, roughly half are unintended. More than a third of all unintended pregnancies end in abortion. As a result, approximately 1 million women in the United States have an abortion each year.
Unmarried women are five times as likely as married women to terminate an unintended pregnancy with an abortion. Women living below the poverty line are five times more likely than higher-income women to have an unintended pregnancy, and poor women have 40 percent of all abortions.
Abortion is a sensitive topic that engages deeply-felt moral and religious beliefs. Many Americans abhor abortion. Some of them work actively to reduce the number of abortions by advocating greater sex education and easier access to birth control. Others take a more draconian approach. Responding to the latter approach, a number of states, most notably Alabama, Arizona, Arkansas, Idaho, Indiana, Kansas, Kentucky, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, Texas and Utah, have enacted harsh restrictions intended to drive abortion providers out of existence.
Among these restrictions are laws requiring a woman to make multiple trips to an abortion provider before she can have a legal abortion; requiring abortion providers to be located within a short distance of a hospital; requiring abortion providers to have an affiliation with a local hospital; and requiring abortion providers to have procedure rooms and corridors of specified sizes that have nothing whatever to do with the abortion procedure.
These restrictions are defended on the ground that they are designed to protect the health and safety of women, but that is a fraud. Their real purpose is to raise the cost of abortion, to make abortion more difficult, to put as many obstacles as possible in the path of women seeking to terminate unwanted pregnancies, and to put as many abortion providers as possible out of business.
Largely as a result of these restrictions, millions of women now reside in counties with no abortion providers. As a consequence, those women now have to travel great distances in order to exercise their constitutional right to terminate an unwanted pregnancy, often at considerable cost and inconvenience.
Not surprisingly, these restrictions have a particularly severe impact on poor women, who have neither the resources nor the time to travel long distances to obtain an abortion. The effect of these restrictions is to cause women, especially poor women, to bear children they do not want, with often dire consequences for these women and their families. It is hard not to conclude that the purpose of these laws is to punish women, as well as to limit the number of abortions performed each year in the United States.
This is, frankly, a stupid way to attempt to reduce the number of abortions. There is a much better way. That way is to reduce the number of unintended pregnancies. Sixty-five percent of women in the United States today use contraception consistently and correctly. They account for only 5 percent of all unintended pregnancies. Thirty-five percent of women in the United States today, mostly teenage girls and poor women, use contraception inconsistently or not at all. They account for 95 percent of all unintended pregnancies.
Women who correctly use contraception have less than a 1 percent chance of experiencing pregnancy over the course of a year. Women who do not use contraception or use it inconsistently or incorrectly have an 85 percent chance of experiencing an unintended pregnancy each year.
For those who are serious about wanting to reduce the number of abortions in the United States, easy access to affordable and effective contraception, and ready advice about the proper use of contraception, is critical. With such a policy in place, the United States would radically reduce the number of unintended pregnancies, the number of unintended children, and the number of abortions. Indeed, if all people used contraception consistently and correctly, the number of abortions per year in the United States would drop from one million to approximately 75,000.
Those who say they want to reduce the number of abortions in the United States should abandon their punitive and misguided policies and do something constructive to address the issue.
Unmarried women are five times as likely as married women to terminate an unintended pregnancy with an abortion. Women living below the poverty line are five times more likely than higher-income women to have an unintended pregnancy, and poor women have 40 percent of all abortions.
Abortion is a sensitive topic that engages deeply-felt moral and religious beliefs. Many Americans abhor abortion. Some of them work actively to reduce the number of abortions by advocating greater sex education and easier access to birth control. Others take a more draconian approach. Responding to the latter approach, a number of states, most notably Alabama, Arizona, Arkansas, Idaho, Indiana, Kansas, Kentucky, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, Texas and Utah, have enacted harsh restrictions intended to drive abortion providers out of existence.
Among these restrictions are laws requiring a woman to make multiple trips to an abortion provider before she can have a legal abortion; requiring abortion providers to be located within a short distance of a hospital; requiring abortion providers to have an affiliation with a local hospital; and requiring abortion providers to have procedure rooms and corridors of specified sizes that have nothing whatever to do with the abortion procedure.
These restrictions are defended on the ground that they are designed to protect the health and safety of women, but that is a fraud. Their real purpose is to raise the cost of abortion, to make abortion more difficult, to put as many obstacles as possible in the path of women seeking to terminate unwanted pregnancies, and to put as many abortion providers as possible out of business.
Largely as a result of these restrictions, millions of women now reside in counties with no abortion providers. As a consequence, those women now have to travel great distances in order to exercise their constitutional right to terminate an unwanted pregnancy, often at considerable cost and inconvenience.
Not surprisingly, these restrictions have a particularly severe impact on poor women, who have neither the resources nor the time to travel long distances to obtain an abortion. The effect of these restrictions is to cause women, especially poor women, to bear children they do not want, with often dire consequences for these women and their families. It is hard not to conclude that the purpose of these laws is to punish women, as well as to limit the number of abortions performed each year in the United States.
This is, frankly, a stupid way to attempt to reduce the number of abortions. There is a much better way. That way is to reduce the number of unintended pregnancies. Sixty-five percent of women in the United States today use contraception consistently and correctly. They account for only 5 percent of all unintended pregnancies. Thirty-five percent of women in the United States today, mostly teenage girls and poor women, use contraception inconsistently or not at all. They account for 95 percent of all unintended pregnancies.
Women who correctly use contraception have less than a 1 percent chance of experiencing pregnancy over the course of a year. Women who do not use contraception or use it inconsistently or incorrectly have an 85 percent chance of experiencing an unintended pregnancy each year.
For those who are serious about wanting to reduce the number of abortions in the United States, easy access to affordable and effective contraception, and ready advice about the proper use of contraception, is critical. With such a policy in place, the United States would radically reduce the number of unintended pregnancies, the number of unintended children, and the number of abortions. Indeed, if all people used contraception consistently and correctly, the number of abortions per year in the United States would drop from one million to approximately 75,000.
Those who say they want to reduce the number of abortions in the United States should abandon their punitive and misguided policies and do something constructive to address the issue.
December 6, 2014
Obama Africanus the First
I've been thinking lately about the persistently vituperative and insulting attacks on President Obama since 2008. It is, of course, commonplace in American politics for presidents to be lambasted for their policies, their programs, their values, and even their personal quirks. Sometimes the tone crosses the line. John Adams was accused by a political opponent of "swallowing up" every "consideration of the public welfare . . . in a continual grasp for power." James Madison was demeaned as "Little Jemmy," because he was short. James Buchanan, who once declared that workers should get by on a dime a day, came to be mocked as "Ten Cents Jimmy."
John Tyler, who assumed the presidency after the death of William Henry Harrison, was ridiculed as "His Accidency." Congressman Abraham Lincoln castigated President James K. Polk as a "completely bewildered man." Opponents of Woodrow Wilson's reinstitution of the draft in World War I accused him of "committing a sin against humanity." Critics of Franklin Roosevelt's New Deal attacked him as an "un-American radical." Richard Nixon was famously known as "Tricky Dick," and of course he was not "A Crook." At the height of the Vietnam War, Lyndon Johnson was excoriated by his opponents as a "Murderer" and a "War Criminal."
But no president in our nation's history has ever been castigated, condemned, mocked, insulted, derided, and degraded on a scale even close to the constantly ugly attacks on President Obama. From the day he assumed office - indeed, even before he assumed office - he was subjected to unprecedented insults in often the most hateful terms.
He has been accused of being born in Kenya, of being a "secret Muslim," of being complicit with the Muslim Brotherhood, of wearing a ring bearing a secret verse from the Koran, of having once been a Black Panther, of refusing to recite the pledge of allegiance, of seeking to confiscate all guns, of lying about just about everything he has ever said, ranging from Benghazi to the Affordable Care Act to immigration, of faking bin Laden's death, and of funding his campaigns with drug money. It goes on and on and on. Even the President's family is treated by his political enemies with disrespect and disdain.
If one browses even respectable websites, one can readily find bumper stickers, coffee cups, and tee-shirts for sale with such messages as: "Dump This Turd" (with an image of President Obama); "Coward! You Left Them To Die in Benghazi" (with an image of President Obama); "Somewhere in Kenya A Village Is Missing Its Idiot" (with an image of President Obama); "Islam's Trojan Horse" (with an image of President Obama); "Pure Evil" (with an image of President Obama); "I'm Not A Racist: I Hate His White Half Too" (with an image of President Obama); "He Lies!" (with an image of President Obama); and on and on and on.
Now, don't get me wrong. Every one of these messages is protected by the First Amendment, and people have a right to express their views, even in harsh, offensive, cruel, and moronic ways. We the People do not need to trust or admire our leaders, and we should not treat them with respect if we don't feel they deserve our respect. But the sheer vituperation directed at this President goes beyond any rational opposition and is, quite frankly, mind-boggling.
In part, of course, this might just be a product of our times. Perhaps the quality of our public discourse has sunk so low that any public official must now expect such treatment. Perhaps any president elected in 2008 would have been greeted with similar scorn and disdain. But, to be honest, that seems unlikely.
Of course, there are those who say that this phenomenon is due in part, perhaps in large part, to the fact that President Obama is African-American. But surely racism is dead in America today, right?
One fact that might lend some credence to the theory that racism has something to do with the tenor of the attacks on President Obama is that only one other president in our history has been the target of similar (though more subdued) personal attacks.
In his day, this president was castigated by the press and his political opponents as a "liar," a "despot," a "usurper," a "thief," a "monster," a "perjurer," an "ignoramus," a "swindler," a "tyrant," a "fiend," a "coward," a "buffoon," a "butcher," a "pirate," a "devil," and a "king." He was charged with being "cunning," "thickheaded," "heartless," "filthy," and "fanatical." He was accused of behaving "like a thief in the night," of being "the miserable tool of traitors and rebels," and of being "adrift on a current of racial fanaticism." He was labeled by his enemies "Abraham Africanus the First."
But, of course, race had nothing to do with it then, either.
John Tyler, who assumed the presidency after the death of William Henry Harrison, was ridiculed as "His Accidency." Congressman Abraham Lincoln castigated President James K. Polk as a "completely bewildered man." Opponents of Woodrow Wilson's reinstitution of the draft in World War I accused him of "committing a sin against humanity." Critics of Franklin Roosevelt's New Deal attacked him as an "un-American radical." Richard Nixon was famously known as "Tricky Dick," and of course he was not "A Crook." At the height of the Vietnam War, Lyndon Johnson was excoriated by his opponents as a "Murderer" and a "War Criminal."
But no president in our nation's history has ever been castigated, condemned, mocked, insulted, derided, and degraded on a scale even close to the constantly ugly attacks on President Obama. From the day he assumed office - indeed, even before he assumed office - he was subjected to unprecedented insults in often the most hateful terms.
He has been accused of being born in Kenya, of being a "secret Muslim," of being complicit with the Muslim Brotherhood, of wearing a ring bearing a secret verse from the Koran, of having once been a Black Panther, of refusing to recite the pledge of allegiance, of seeking to confiscate all guns, of lying about just about everything he has ever said, ranging from Benghazi to the Affordable Care Act to immigration, of faking bin Laden's death, and of funding his campaigns with drug money. It goes on and on and on. Even the President's family is treated by his political enemies with disrespect and disdain.
If one browses even respectable websites, one can readily find bumper stickers, coffee cups, and tee-shirts for sale with such messages as: "Dump This Turd" (with an image of President Obama); "Coward! You Left Them To Die in Benghazi" (with an image of President Obama); "Somewhere in Kenya A Village Is Missing Its Idiot" (with an image of President Obama); "Islam's Trojan Horse" (with an image of President Obama); "Pure Evil" (with an image of President Obama); "I'm Not A Racist: I Hate His White Half Too" (with an image of President Obama); "He Lies!" (with an image of President Obama); and on and on and on.
Now, don't get me wrong. Every one of these messages is protected by the First Amendment, and people have a right to express their views, even in harsh, offensive, cruel, and moronic ways. We the People do not need to trust or admire our leaders, and we should not treat them with respect if we don't feel they deserve our respect. But the sheer vituperation directed at this President goes beyond any rational opposition and is, quite frankly, mind-boggling.
In part, of course, this might just be a product of our times. Perhaps the quality of our public discourse has sunk so low that any public official must now expect such treatment. Perhaps any president elected in 2008 would have been greeted with similar scorn and disdain. But, to be honest, that seems unlikely.
Of course, there are those who say that this phenomenon is due in part, perhaps in large part, to the fact that President Obama is African-American. But surely racism is dead in America today, right?
One fact that might lend some credence to the theory that racism has something to do with the tenor of the attacks on President Obama is that only one other president in our history has been the target of similar (though more subdued) personal attacks.
In his day, this president was castigated by the press and his political opponents as a "liar," a "despot," a "usurper," a "thief," a "monster," a "perjurer," an "ignoramus," a "swindler," a "tyrant," a "fiend," a "coward," a "buffoon," a "butcher," a "pirate," a "devil," and a "king." He was charged with being "cunning," "thickheaded," "heartless," "filthy," and "fanatical." He was accused of behaving "like a thief in the night," of being "the miserable tool of traitors and rebels," and of being "adrift on a current of racial fanaticism." He was labeled by his enemies "Abraham Africanus the First."
But, of course, race had nothing to do with it then, either.
November 21, 2014
Are the President's Actions on Immigration Legal?
Questions have been raised about the legality of the executive actions recently taken by President Obama in the domain of immigration policy. A group of legal and constitutional scholars, from such institutions as Harvard, Yale, Chicago, and Columbia, have looked into this question. Without expressing any view on the merits of these executive actions as a matter of immigration policy, we are confident that they raise no credible legal or constitutional issue. Our statement to that effect is below:
We are law professors and lawyers who teach, study, and practice constitutional law and related subjects. We have reviewed the executive actions taken by the President on November 20, 2014, to establish priorities for removing undocumented noncitizens from the United States and to make deferred action available to certain noncitizens. While we differ among ourselves on many issues relating to presidential power and immigration policy, we are all of the view that these actions are lawful. They are exercises of prosecutorial discretion that are consistent with governing law and with the policies that Congress has expressed in the statutes that it has enacted.
1. Prosecutorial discretion -- the power of the executive to determine when to enforce the law -- is one of the most well-established traditions in American law. Prosecutorial discretion is, in particular, central to the enforcement of immigration law against removable noncitizens. As the Supreme Court has said, "the broad discretion exercised by immigration officials" is "[a] principal feature of the removal system." Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
Even apart from this established legal tradition, prosecutorial discretion in the enforcement of immigration law is unavoidable. According to most current estimates, there are approximately 11 million undocumented noncitizens in the United States. The resources that Congress has appropriated for immigration enforcement permit the removal of approximately 400,000 individuals each year. In these circumstances, some officials will necessarily exercise their discretion in deciding which among many potentially removable individuals is to be removed.
The effect of the November 20 executive actions is to secure greater transparency by having enforcement policies articulated explicitly by high-level officials, including the president. Immigration officials and officers in the field are provided with clear guidance while also being allowed a degree of flexibility. This kind of transparency promotes the values underlying the rule of law.
2. There are, of course, limits on the prosecutorial discretion that may be exercised by the executive branch. We would not endorse an executive action that constituted an abdication of the president's responsibility to enforce the law or that was inconsistent with the purposes underlying a statutory scheme. But these limits on the lawful exercise of prosecutorial discretion are not breached here.
Both the setting of removal priorities and the use of deferred action are well-established ways in which the executive has exercised discretion in using its removal authority. These means of exercising discretion in the immigration context have been used many times by the executive branch under Presidents of both parties, and Congress has explicitly and implicitly endorsed their use.
The specific enforcement priorities set by the November 20 order give the highest priority to removing noncitizens who present threats to national security, public safety, or border security. These common-sense priorities are consistent with long-standing congressional policies and are reflected in Acts of Congress.
Similarly, allowing parents of citizens and permanent lawful residents to apply for deferred action will enable families to remain together in the United States for a longer period of time until they are eligible to exercise the option, already given to them by Congress, to seek to regularize the parents' status. Many provisions of the immigration laws reflect Congress's determination that, when possible, individuals entitled to live in the United States should not be separated from their families; the November 20 executive action reflects the same policy. The authority for deferred action, which is temporary and revocable, does not change the status of any noncitizen or give any noncitizen a path to citizenship.
In view of the practical and legal centrality of discretion to the removal system, Congress's decision to grant these families a means of regularizing their status, and the general congressional policy of keeping families intact, we believe that the deferred action criteria established in the November 20 executive order are comfortably within the discretion allowed to the executive branch.
As a group, we express no view on the merits of these executive actions as a matter of policy. We do believe, however, that they are within the power of the Executive Branch and that they represent a lawful exercise of the president's authority.
Lee C. Bollinger
President
Columbia University
Adam B. Cox
Professor of Law
New York University School of Law
Walter E. Dellinger III
Douglas B. Maggs Professor of Law
Duke University
and O'Melveny & Myers, Washington, D.C.
Harold Hongju Koh
Sterling Professor of International Law
Yale Law School
Gillian Metzger
Stanley H. Fuld Professor of Law
Columbia Law School
Eric Posner
Kirkland and Ellis Distinguished Service Professor of Law
University of Chicago Law School
Cristina Rodríguez
Leighton Homer Surbeck Professor of Law
Yale Law School
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law
The University of Chicago
David A. Strauss
Gerald Ratner Distinguished Service Professor of Law
University of Chicago Law School
Laurence H. Tribe
Carl M. Loeb University Professor and
Professor of Constitutional Law
Harvard Law School
Affiliations are for identification purposes only
November 20, 2014
We are law professors and lawyers who teach, study, and practice constitutional law and related subjects. We have reviewed the executive actions taken by the President on November 20, 2014, to establish priorities for removing undocumented noncitizens from the United States and to make deferred action available to certain noncitizens. While we differ among ourselves on many issues relating to presidential power and immigration policy, we are all of the view that these actions are lawful. They are exercises of prosecutorial discretion that are consistent with governing law and with the policies that Congress has expressed in the statutes that it has enacted.
1. Prosecutorial discretion -- the power of the executive to determine when to enforce the law -- is one of the most well-established traditions in American law. Prosecutorial discretion is, in particular, central to the enforcement of immigration law against removable noncitizens. As the Supreme Court has said, "the broad discretion exercised by immigration officials" is "[a] principal feature of the removal system." Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
Even apart from this established legal tradition, prosecutorial discretion in the enforcement of immigration law is unavoidable. According to most current estimates, there are approximately 11 million undocumented noncitizens in the United States. The resources that Congress has appropriated for immigration enforcement permit the removal of approximately 400,000 individuals each year. In these circumstances, some officials will necessarily exercise their discretion in deciding which among many potentially removable individuals is to be removed.
The effect of the November 20 executive actions is to secure greater transparency by having enforcement policies articulated explicitly by high-level officials, including the president. Immigration officials and officers in the field are provided with clear guidance while also being allowed a degree of flexibility. This kind of transparency promotes the values underlying the rule of law.
2. There are, of course, limits on the prosecutorial discretion that may be exercised by the executive branch. We would not endorse an executive action that constituted an abdication of the president's responsibility to enforce the law or that was inconsistent with the purposes underlying a statutory scheme. But these limits on the lawful exercise of prosecutorial discretion are not breached here.
Both the setting of removal priorities and the use of deferred action are well-established ways in which the executive has exercised discretion in using its removal authority. These means of exercising discretion in the immigration context have been used many times by the executive branch under Presidents of both parties, and Congress has explicitly and implicitly endorsed their use.
The specific enforcement priorities set by the November 20 order give the highest priority to removing noncitizens who present threats to national security, public safety, or border security. These common-sense priorities are consistent with long-standing congressional policies and are reflected in Acts of Congress.
Similarly, allowing parents of citizens and permanent lawful residents to apply for deferred action will enable families to remain together in the United States for a longer period of time until they are eligible to exercise the option, already given to them by Congress, to seek to regularize the parents' status. Many provisions of the immigration laws reflect Congress's determination that, when possible, individuals entitled to live in the United States should not be separated from their families; the November 20 executive action reflects the same policy. The authority for deferred action, which is temporary and revocable, does not change the status of any noncitizen or give any noncitizen a path to citizenship.
In view of the practical and legal centrality of discretion to the removal system, Congress's decision to grant these families a means of regularizing their status, and the general congressional policy of keeping families intact, we believe that the deferred action criteria established in the November 20 executive order are comfortably within the discretion allowed to the executive branch.
As a group, we express no view on the merits of these executive actions as a matter of policy. We do believe, however, that they are within the power of the Executive Branch and that they represent a lawful exercise of the president's authority.
Lee C. Bollinger
President
Columbia University
Adam B. Cox
Professor of Law
New York University School of Law
Walter E. Dellinger III
Douglas B. Maggs Professor of Law
Duke University
and O'Melveny & Myers, Washington, D.C.
Harold Hongju Koh
Sterling Professor of International Law
Yale Law School
Gillian Metzger
Stanley H. Fuld Professor of Law
Columbia Law School
Eric Posner
Kirkland and Ellis Distinguished Service Professor of Law
University of Chicago Law School
Cristina Rodríguez
Leighton Homer Surbeck Professor of Law
Yale Law School
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law
The University of Chicago
David A. Strauss
Gerald Ratner Distinguished Service Professor of Law
University of Chicago Law School
Laurence H. Tribe
Carl M. Loeb University Professor and
Professor of Constitutional Law
Harvard Law School
Affiliations are for identification purposes only
November 20, 2014
November 14, 2014
Enact the USA Freedom Act
Next week, the Senate is scheduled to take up the proposed USA Freedom Act. It is imperative that the Senate approve this legislation.
The USA Freedom Act addresses many of the issues raised by the NSA's program of bulk telephone metadata collection. This program, which has caused such consternation, was approved by the Senate and House Intelligence Committees, the Foreign Intelligence Surveillance Court and the White House. Under the program, the NSA was authorized to collect from telephone service providers massive amounts of indiscriminate data about Americans' phone call records.
The purpose of gathering this data was to enable the NSA to determine whether suspected terrorists outside the United States were talking to suspected terrorists inside the United States.
After the existence of the program was made public by Edward Snowden, President Obama appointed a five-person Review Group to examine the NSA's foreign intelligence surveillance programs and to make recommendations about how those programs might be redesigned to strike a better balance between the nation's compelling interests in individual privacy and national security.
This Review Group, of which I was a member, spent four months meeting intensively with the NSA, the FBI, Homeland Security, the House and Senate Intelligence Committees, the House and Senate Judiciary Committees, officials from the Department of Justice, representatives of most of the nation's privacy and civil liberties organizations, and a host of other individuals and organizations.
In the end, the Review Group produced a comprehensive 300-page report, Liberty and Security in a Changing World, which made forty-six unanimous recommendations about how to reform our nation's foreign intelligence surveillance programs.
Although the USA Freedom Act does not address all of the issues addressed in the report, it adopts most of the Review Group's most important recommendations for limiting the bulk collection of the telephone metadata of American citizens. The proposed Act is a huge step forward in our nation's effort to redesign our surveillance programs to protect the privacy of American citizens without sacrificing the compelling need to protect our national security.
This legislation should be adopted by the Senate, enacted by the House and signed by the President -- without delay.
The USA Freedom Act addresses many of the issues raised by the NSA's program of bulk telephone metadata collection. This program, which has caused such consternation, was approved by the Senate and House Intelligence Committees, the Foreign Intelligence Surveillance Court and the White House. Under the program, the NSA was authorized to collect from telephone service providers massive amounts of indiscriminate data about Americans' phone call records.
The purpose of gathering this data was to enable the NSA to determine whether suspected terrorists outside the United States were talking to suspected terrorists inside the United States.
After the existence of the program was made public by Edward Snowden, President Obama appointed a five-person Review Group to examine the NSA's foreign intelligence surveillance programs and to make recommendations about how those programs might be redesigned to strike a better balance between the nation's compelling interests in individual privacy and national security.
This Review Group, of which I was a member, spent four months meeting intensively with the NSA, the FBI, Homeland Security, the House and Senate Intelligence Committees, the House and Senate Judiciary Committees, officials from the Department of Justice, representatives of most of the nation's privacy and civil liberties organizations, and a host of other individuals and organizations.
In the end, the Review Group produced a comprehensive 300-page report, Liberty and Security in a Changing World, which made forty-six unanimous recommendations about how to reform our nation's foreign intelligence surveillance programs.
Although the USA Freedom Act does not address all of the issues addressed in the report, it adopts most of the Review Group's most important recommendations for limiting the bulk collection of the telephone metadata of American citizens. The proposed Act is a huge step forward in our nation's effort to redesign our surveillance programs to protect the privacy of American citizens without sacrificing the compelling need to protect our national security.
This legislation should be adopted by the Senate, enacted by the House and signed by the President -- without delay.
November 6, 2014
The Senate: A Republican 'Landslide'?
The news has been filled lately with assertions that the Republicans won the Senate in "a landslide" and that the 2014 Senate election was "a complete repudiation of President Obama." If one looks at the change in the makeup of the Senate, this seems a fair assessment.
Going into Tuesday's election, the Democrats held a 53 to 45 seat majority in the Senate, with the two Independents generally caucusing with the Democrats. On Tuesday, 36 Senate seats were up for grabs. To retain control of the Senate, the Democrats needed to win at least 16 of those 36 seats. This they failed to do. It now appears that the Republicans won 23 of the 36 seats in contention, which means that the next Senate will have 53 Republican Senators.
Put simply, the Republicans won 64 percent of the Senate seats up for election in 2014 (23 of 36). That does, indeed, sound like a "landslide."
But it is not that simple. Because every state has two senators, without regard to its population, the Senate is a rather odd legislative body. It represents the states, but not the American people. Although the Republicans won 64 percent of the Senate seats up for election in 2014, they received only 52 percent of the votes.
This was so because Republicans tend to live in more sparsely populated states like Alaska, Idaho, Kansas, South Dakota, and Montana, whereas Democrats tend to live in more heavily populated states like New York, California, Illinois, Michigan, and New Jersey. Thus, although the Republicans won in a "landslide" of Senate seats, they achieved only a modest victory in terms of overall popular vote.
The problem for the Democrats in terms of the Senate is that they live in the wrong states.
So, here's a plan for the Democrats to "fix" this problem in the future: Democrats have to move into the more sparsely populated Republican states. How many Democrats would have had to move to Republican states in order to have changed the outcome of the 2014 election and leave the Democrats in control of the Senate?
In turns out that only 117,000 additional Democratic voters in Alaska, North Carolina, and South Dakota combined would have tilted the outcomes in those states and left the Democrats in control of the Senate. That's not very many. Given that young voters generally vote Democratic, how hard would it be for 117,000 underemployed young adults to do some serious public service and move to the states that are likely to have the most hotly-contested Senate races in the future? Given the role of money in politics these days, perhaps some wealthy Democratic donors would subsidize their moves.
This is, of course, tongue-in-cheek (in case you were in doubt). But the central point remains: The 2014 Senate election was a Republican "landslide" only if you count states rather than Americans. To make the point even more clearly, although Republicans will now control 53 percent of the seats in the Senate, these Republican senators actually represent only 46 percent of the American people. It's a strange kind of landslide, indeed.
Going into Tuesday's election, the Democrats held a 53 to 45 seat majority in the Senate, with the two Independents generally caucusing with the Democrats. On Tuesday, 36 Senate seats were up for grabs. To retain control of the Senate, the Democrats needed to win at least 16 of those 36 seats. This they failed to do. It now appears that the Republicans won 23 of the 36 seats in contention, which means that the next Senate will have 53 Republican Senators.
Put simply, the Republicans won 64 percent of the Senate seats up for election in 2014 (23 of 36). That does, indeed, sound like a "landslide."
But it is not that simple. Because every state has two senators, without regard to its population, the Senate is a rather odd legislative body. It represents the states, but not the American people. Although the Republicans won 64 percent of the Senate seats up for election in 2014, they received only 52 percent of the votes.
This was so because Republicans tend to live in more sparsely populated states like Alaska, Idaho, Kansas, South Dakota, and Montana, whereas Democrats tend to live in more heavily populated states like New York, California, Illinois, Michigan, and New Jersey. Thus, although the Republicans won in a "landslide" of Senate seats, they achieved only a modest victory in terms of overall popular vote.
The problem for the Democrats in terms of the Senate is that they live in the wrong states.
So, here's a plan for the Democrats to "fix" this problem in the future: Democrats have to move into the more sparsely populated Republican states. How many Democrats would have had to move to Republican states in order to have changed the outcome of the 2014 election and leave the Democrats in control of the Senate?
In turns out that only 117,000 additional Democratic voters in Alaska, North Carolina, and South Dakota combined would have tilted the outcomes in those states and left the Democrats in control of the Senate. That's not very many. Given that young voters generally vote Democratic, how hard would it be for 117,000 underemployed young adults to do some serious public service and move to the states that are likely to have the most hotly-contested Senate races in the future? Given the role of money in politics these days, perhaps some wealthy Democratic donors would subsidize their moves.
This is, of course, tongue-in-cheek (in case you were in doubt). But the central point remains: The 2014 Senate election was a Republican "landslide" only if you count states rather than Americans. To make the point even more clearly, although Republicans will now control 53 percent of the seats in the Senate, these Republican senators actually represent only 46 percent of the American people. It's a strange kind of landslide, indeed.
November 5, 2014
The Imitation Game
The other day I had the privilege of attending an advance screening of the forthcoming movie The Imitation Game, starring Benedict Cumberbatch and Keira Knightley. I am not a movie reviewer, so I will not offer an evaluation of the movie -- other than to say that it is superb.
What particularly interests me is the story itself and the extraordinary range of deeply important issues it poses. The Imitation Game traces the real-life tale of Alan Turing, the brilliant and highly idiosyncratic British scientist and philosopher whose secret contributions during World War II saved the lives of an estimated 14 million individuals by enabling the Allies to win the war much sooner than would otherwise have been possible.
Still in his twenties, Turing led a small cohort of odd-ball cryptographers in a top secret effort to discover the secret of the Nazis' Enigma machine. It was through the use of this machine that the Nazis were able to send encrypted messages to their forces throughout the world. It was, at the time, the most effective and unbreakable code ever invented.
Operating out of Hut 8 in Bletchley Park, Turing's genius and persistence enabled him to invent what was essentially the world's first computer, which finally broke the secrets of the Enigma machine. Although other Allied nations were trying with dogged determination to achieve this outcome, only Turing succeeded.
But that was only the beginning. Even after breaking the Nazi code, the question arose of what to do with this secret knowledge. The goal was not just to break the code, but to use the information gained in order to thwart the Nazi war effort. This had to be done carefully and selectively, because if the Nazis realized that the English had penetrated their code they would simply stop using the Enigma machine.
Thus, to use their knowledge to best effect, the English had to exercise restraint. They could use the decoded information only in carefully selected circumstances. Frequently, they would have to forego its use and permit the Nazis to succeed in battles in order to protect what was now their secret weapon. Turing and his crew played a central role in figuring out how to use the information without giving away their secret.
With end of the war, the British decided to keep secret the fact that they had broken the Nazi code. This was strategic. Other nations, thinking that the Enigma machine was unbreakable, used it themselves for decades after World War II, without realizing that the British could decode their messages. Turning's extraordinary achievement therefore remained locked away in the national security closet in order to leave the British with this advantage.
Alan Turing was in the closet in another way, as well. He was a homosexual. A few years after World War II ended, he was arrested for gross indecency -- otherwise known as homosexual conduct. Although perhaps the greatest hero of World War II, Turing could not reveal the secret of his contribution. He was convicted and, rather than spend two years in prison, accepted the penalty chemical castration, a common punish for homosexuals under British law. The belief at the time was that homosexuality was a mental illness that could be "treated" in this manner.
Suffering from the ill effects of this barbarous medication, Alan Turing committed suicide in 1952, with his contributions to Western civilization still unknown. It remained so for almost half-a-century. In 2009, British Prime Minister Gordon Brown finally issued a public apology for the "appalling" treatment of the man who, according to Winston Churchill, had made "the single biggest contribution to Allied victory in the war against Nazi Germany."
This is a deeply moving and powerful story. The Imitation Game , which opens in theaters in December, is a stunning movie.
What particularly interests me is the story itself and the extraordinary range of deeply important issues it poses. The Imitation Game traces the real-life tale of Alan Turing, the brilliant and highly idiosyncratic British scientist and philosopher whose secret contributions during World War II saved the lives of an estimated 14 million individuals by enabling the Allies to win the war much sooner than would otherwise have been possible.
Still in his twenties, Turing led a small cohort of odd-ball cryptographers in a top secret effort to discover the secret of the Nazis' Enigma machine. It was through the use of this machine that the Nazis were able to send encrypted messages to their forces throughout the world. It was, at the time, the most effective and unbreakable code ever invented.
Operating out of Hut 8 in Bletchley Park, Turing's genius and persistence enabled him to invent what was essentially the world's first computer, which finally broke the secrets of the Enigma machine. Although other Allied nations were trying with dogged determination to achieve this outcome, only Turing succeeded.
But that was only the beginning. Even after breaking the Nazi code, the question arose of what to do with this secret knowledge. The goal was not just to break the code, but to use the information gained in order to thwart the Nazi war effort. This had to be done carefully and selectively, because if the Nazis realized that the English had penetrated their code they would simply stop using the Enigma machine.
Thus, to use their knowledge to best effect, the English had to exercise restraint. They could use the decoded information only in carefully selected circumstances. Frequently, they would have to forego its use and permit the Nazis to succeed in battles in order to protect what was now their secret weapon. Turing and his crew played a central role in figuring out how to use the information without giving away their secret.
With end of the war, the British decided to keep secret the fact that they had broken the Nazi code. This was strategic. Other nations, thinking that the Enigma machine was unbreakable, used it themselves for decades after World War II, without realizing that the British could decode their messages. Turning's extraordinary achievement therefore remained locked away in the national security closet in order to leave the British with this advantage.
Alan Turing was in the closet in another way, as well. He was a homosexual. A few years after World War II ended, he was arrested for gross indecency -- otherwise known as homosexual conduct. Although perhaps the greatest hero of World War II, Turing could not reveal the secret of his contribution. He was convicted and, rather than spend two years in prison, accepted the penalty chemical castration, a common punish for homosexuals under British law. The belief at the time was that homosexuality was a mental illness that could be "treated" in this manner.
Suffering from the ill effects of this barbarous medication, Alan Turing committed suicide in 1952, with his contributions to Western civilization still unknown. It remained so for almost half-a-century. In 2009, British Prime Minister Gordon Brown finally issued a public apology for the "appalling" treatment of the man who, according to Winston Churchill, had made "the single biggest contribution to Allied victory in the war against Nazi Germany."
This is a deeply moving and powerful story. The Imitation Game , which opens in theaters in December, is a stunning movie.
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